4/28/2017

1

Defense, Foreign Relations

& Classified Information:

Exemption 1 of the FOIA

2017 FOIA/PA Workshop, Denver, Colorado

Presented by -

Brentin V. Evitt

Defense Intelligence Agency

Scott Hodes

Scott A. Hodes, Attorney at Law

Where does the authority to classify information come from?

� Responsibility of the Executive Branch to protect national security

� History of Classification Authority and Practice

� Executive Orders

� Classification in the Electronic Age

� Disclosure Meets National Security in Exemption 1

4/28/2017

2

Exemption 1

Threshold language:[Records] (A) specifically authorized under criteria

established by an Executive order to be

kept secret in the interest of national

defense or foreign policy and (B) are in

fact properly classified pursuant to

such Executive order.

5 U.S.C. § 552(b)(1)

Exemption 1

� Who asks for classified information

under FOIA?• Researchers

• Media

• Special Interest Groups

• Interested Individuals

� Why do “they” want it?

� What do “they” do with it?

4/28/2017

3

Targets of Request Strategy:

- Documents that shed light on policy-

making, policy implementation

- Cable traffic

- Briefing materials

- Position papers

- Memoranda of conversation

- Intra-agency policy discussions

- Discussions with foreign government

officials

Exemption 1

- The Government will withhold

information that is currently and

properly classified when it is requested

under the FOIA.

- The Government will release

information that is no longer classified

when it is requested under the FOIA

unless it warrants protection under

another exemption.

4/28/2017

4

Exemption 1

Executive Orders on Classification

EO 10290 – President Truman,

September 24, 1951

EO 10501 – President Eisenhower,

November 5, 1953

EO 11652 – President Nixon,

March 8, 1972

EO 12065 - President Carter,

June 28, 1975

Exemption 1

Executive Orders on Classification

EO 12356 – President Reagan,

April 2, 1982

EO 12958– President Clinton,

April 12, 1995

EO 13292 – President Bush,

March 25, 2003

(EO 12958, Amended)

EO 13526 - President Obama,

December 29, 2009

4/28/2017

5

Executive Order 13526

Our democratic principles require that the

American people be informed of the activities

of their Government…Nevertheless,

throughout our history, the national defense

has required that certain information be

maintained in confidence in order to protect

our citizens, our democratic institutions, our

homeland security, and our interactions with

foreign nations. Protecting information

critical to our Nation’s security and

demonstrating our commitment to open

Government through accurate and

accountable application of classification

standards and routine, secure, and effective

declassification are equally important

priorities.

Executive Order 13526

Some Key Changes from previous EO

Sections 1.1(b) and 1.2(c) - The

presumption against classification and in

favor of a lower level of classification in

cases of “significant doubt.”

Section 1.7(c) - Prohibits the

reclassification of information after its

declassification and release under proper

authority except when agencies can comply

with significantly tightened restrictions,

particularly regarding records that have

been accessioned into the National

Archives.

4/28/2017

6

Executive Order 13526

Sec. 1.2. Classification Levels. (a) Information may be classified at one of

the following three levels:

(1) ‘‘Top Secret’’ shall be applied to information, the unauthorized disclosure

of which reasonably could be expected

to cause exceptionally grave damage to

the national security that the original

classification authority is able to

identify or describe.

Executive Order 13526

(2) ‘‘Secret’’ shall be applied to information, the unauthorized disclosure

of which reasonably could be expected

to cause serious damage to the national

security that the original classification

authority is able to identify or describe.

(3) ‘‘Confidential’’ shall be applied to information, the unauthorized disclosure

of which reasonably could be expected

to cause damage to the national security

that the original classification authority

is able to identify or describe.

4/28/2017

7

Executive Order 13526

� Executive Order provides procedural and

substantive requirements for making

classification (and declassification) decisions

• Classification decisions can only be made by

designated subject matter experts who are given

classification authority: “OCA’s”

• Declassification decisions can only be made under

the same authority as that given to OCA’s

• In the FOIA Context, OCA’s can function as—or

extend authority to--“Initial Denial Authorities

(IDA)”

• OCA/IDA’s have subordinate Subject Matter Experts

(SME’s) review the records for current and proper

classification

• FOIA AO’s are not SME’s on anything but FOIA

Compliance

Executive Order 13526

Sec. 1.4. Classification Categories. Information shall not be considered for

classification unless its unauthorized

disclosure could reasonably be expected

to cause identifiable or describable

damage to the national security in

accordance with section 1.2 of this order,

and it pertains to one or more of

the following:

(a) military plans, weapons systems, or

operations;

(b) foreign government information;

4/28/2017

8

Executive Order 13526

(c) intelligence activities (including covert

action), intelligence sources or methods,

or cryptology;

(d) foreign relations or foreign activities

of the United States, including

confidential sources;

(e) scientific, technological, or economic

matters relating to the national security;

(f) United States Government programs

for safeguarding nuclear materials or

facilities;

Executive Order 13526

(g) vulnerabilities or capabilities of

systems, installations, infrastructures,

projects, plans, or protection services

relating to the national security; or

(h) the development, production, or use

of weapons of mass destruction.

4/28/2017

9

Requester Targets: Tactics

- Be as specific as possible, i.e.

- Dates

- People

- Offices

- If possible, identify retired records

that may hold relevant materials

- If available, identify specific

documents referenced in public

testimony, memoirs, books by former

officials

Executive Order 13526

Section 1.7 Classification Prohibitions and Limitations. (a) In no case shall information be

classified, continue to be maintained as

classified, or fail to be declassified in order to:

(1) conceal violations of law, inefficiency, or

administrative error;

(2) prevent embarrassment to a person,

organization, or agency;

(3) restrain competition; or

(4) prevent or delay the release of information

that does not require protection in the interest

of the national security.

4/28/2017

10

Executive Order 13526

Classification after the receipt of a FOIA or MDR

request

Section 1.7 (d) - Information has not previously been

disclosed to the public under proper

authority

- Must meet the classification requirements

of the EO order

- Accomplished on a document-by-document

basis with the personal participation or

under the direction of the agency head, the

deputy agency head, or the senior agency

official designated under section 5.4

Compilation/Mosaic Theory

• PROBLEM: PROTECTION OF RECORDS CONTAINING UNCLASSIFIED INFORMATION, THE UNAUTHORIZED RELEASE OF WHICH REASONABLY COULD BE EXPECTED TO CAUSE DAMAGE TO THE NATIONAL SECURITY.

• CLASSIFICATION BASED ON COMPILATION THEORY

• APPLIES WHEN A GOVERNMENT AGENCY COMPILES SELECTED UNCLASSIFIED INFORMATION INTO A SINGLE RECORD OR PORTION THEREOF THAT IN ITS TOTALITY IS CLASSIFIED: FRONT END OF LIFE CYCLE MANAGEMENT OF DOCUMENT (LCM)

• EXAMPLE: A LISTING OF TITLES BY DATE OR CONTROL NUMBER OF ALL INTELLIGENCE STUDIES DONE FOR A PARTICULAR PERIOD OF TIME.

• CLASSIFICATION BASED ON MOSAIC THEORY

• APPLIES WHEN A GOVERNMENT AGENCY DETERMINES THAT RELEASE OF ALL UNCLASSIFIED RECORDS ON A PARTICULAR SUBJECT WOULD ENABLE A KNOWLEDGEABLE PERSON TO ANALYZE THE MATERIAL AND DETERMINE INFORMATION WHICH IS CLASSIFIED: TAIL END OF LCM

• EXAMPLE: RELEASE OF ALL RECORDS CONCERNING ARMS SALES TO A FRIENDLY NATION (e.g. ISRAEL) FOR A SIGNIFICANT PERIOD OF TIME.

4/28/2017

11

Executive Order 13526

The “Glomar” Response

- What is the genesis of the term?:

- http://www.radiolab.org/story/confirm-

nor-deny/

- What does it mean to “Glomar” a

request?

- How is it properly and consistently

applied?

Executive Order 13526

Glomar Response“The Department of Defense has determined that the fact of the existence or nonexistence of

records, which would reveal a connection or

interest in the matters set forth in your request,

is classified in accordance with Executive Order

13526. Therefore, pursuant to 5 U.S.C. §

552(b)(1), Mr. John Doe, Assistant Deputy Under

Secretary of Defense for Policy has denied your

request. By this statement, the Department

neither confirms nor denies that such records

may or may not exist.”

4/28/2017

12

Exemption 1

Review Issues

- A classification marking does not

automatically exempt the document

under the FOIA

- It must undergo a line-by-line review

- It must be reasonably segregated

- When denying a document in its

entirety, an estimate of the volume of

information is not necessary if such the

volume is itself classified

5. (U) C3 for North American Air Defense

a. (S)

b. (U) Capability

(1) (S)

(2) (S)

(3) (S)

c. (U) Rationale

(1) (S)

SECRET

SECRET

4/28/2017

13

UNCLASSIFIED

UNCLASSIFIED

For example, the Navy’s Aviation Supply Office in Philadelphia, Pennsylvania, purchased theidentical speed decreaser gearbox directly from General Electric. General Electric’s price toNavy’s Aviation Supply Office under a basic ordering agreement (F34601-79-G-0213-GBMT) for46 gearboxes ordered in August 1981 was $79,968 each, for a total of $3,678,528. This unit price issubstantially lower than the $124,880 price negotiated by NAVAIR with Kaman in June 1982 oncontract -0113 ($4,495,698 divided by 36). The following section shows potential savings bybreaking out these items.

Potential Savings by Breakout. DCAS files showed that DCAA, DCAS, and the NavyProcurement Contracting Officer (PCO) recommended the gearboxes for breakout. Also, DCASofficials have stated that the overhead and profit charged by General Electric and Kaman wereexcessive and the PCO was so informed. The final decision on price and whether to break out thebuy, however, was made buy NAVAIR. In a January 11, 1983 memorandum the NAVAIR programmanager indicated that although breakout could save costs, the contractor furnished equipmentmethod was being used problems and the time lag since it last manufactured this part. Wewere told that . however, no reason wasgiven by the program manager for not buying the .

We also found no evidence had adversely affected delivery of helicopters to theGovernment on the Navy contracts cited previously. Current are aheadof Schedule. We therefore believe the Navy should avail itself of the substantial savings that can beachieved by breaking out these items as follows.

Proprietary Rights. According to the NAVAIR program manager, the reason for not breakingout the gearboxes for direct purchase proprietary rights on special tooling for thegearboxes.

competitively on an Air Force contract (F41608-82-R-2618)for the gearboxes in the mid-1982. Our review of available documentation indicated that thespecial tooling in question had been paid for by the Government noobjection to its use on a noninterference We also noted thatcontract -0013 contains a special tooling clause which appears to us to give the Government fullrights to usage (Defense Acquisition Regulation 7-104.25). Even if a legal claim for proprietaryrights could be established by

substantial savings can be achieved by purchasing the gearboxes

PAGE CONTAINS PROPRIETARY CONTRACTOR INFORMATION

Appeal Strategies

- FOIA or MDR Programs?

- Identify similar documents that

were released.

- Stress the age of the documents

to be reviewed.

- Identify published works, often

by former government officials

drawing on government records,

that contain similar information

4/28/2017

14

Executive Order 13526

Other Means of Declassification

Sec. 3.3 Automatic Declassification (a) all

classified records that . . . are more than 25

years old and have permanent historical value .

Sec. 3.4 Systematic Declassification Review.

(a) Each agency . . . shall establish and conduct

a program for systematic declassification review

for records of permanent historical value

exempted from automatic declassification under

section 3.3 of this order . . . . .

Executive Order 13526

Other Means of Declassification

Sec. 3.5 Mandatory Declassification Review.

(a) . . . information classified under this order or predecessor

orders shall be subject to a review for declassification by the

originating agency if:

(1) the request for a review describes the document or material

containing the information with sufficient specificity to enable

the agency to locate it with a reasonable amount of effort;

. . . . . . . . . . .

(e) In accordance with directives issued pursuant to this order,

agency

heads shall develop procedures to process requests for the

mandatory review of classified information . . . . . . They also

shall provide a means for administratively appealing a denial

of a mandatory review request, and for notifying the

requester of the right to appeal a final agency decision to the

Panel.

4/28/2017

15

Okinawa and Nuclear Weapons –Appeal Strategy

-Note that deleted sections likely to deal with

the subject of U.S nuclear weapons based in

Okinawa in the context of U.S.-Japan

negotiations regarding the return of the island

to Japan

- Refer to actions by the Japanese government

to declassify its records regarding nuclear

weapons in Japan

- Provide copies of declassified Japanese

documents with English summaries

Okinawa and Nuclear Weapons –Before and After

4/28/2017

16

Exemption 1 and Multi-Equity Records

Review Issues

- Can a declassifier at one

agency/activity declassify documents

from another?

- Factors:

- Decision Making process: FOIA is the

reverse process

- Subject Matter Expertise: OCA/IDA

- Exchange of Declassification authority

does not equal exchange of expertise

Exemption 1 and Subject Matter Expertise

• DoD is a Multi-Disciplinary Department:

– Many Disciplines: Science, Technology, Foreign Affairs, Military Doctrine, Diplomacy, Personnel, Readiness, Intelligence (HUMINT/SIGINT/IMINT), Environmental Factors, Logistics, Aircraft, Ships, Weaponry, Law . . . . . . . . . . . . . . . . . .

– Each Discipline has many individual classification guides/standards

– VERY difficult, without subject matter immersion, to understand each of these individually

– IMPOSSIBLE to comprehend these in conjunction with each other

4/28/2017

17

The Challenge of Knowing What Is Already Released – Rwanda 1

The Challenge of Knowing What Is Already Released – Rwanda 2

4/28/2017

18

Exemption 1 and Interagency Decisions

• Decision-making process is constitutionally complex:

– Many Interests, many opinions, much input—inherently inter- or intra-agency: multi-equity

– Many reviews and reconsiderations

– Many drafts: high volume, high equity

• FOIA process is the Decision-making process in reverse:

– All interests potentially involved in a FOIA review

– Many drafts = large volume of records

– Review reflects timing of real-time decision-making

– Interests of FOIA Requestor may conflict with interests of American public as a whole